Incorporated Town of New Hampton v. Conroy

• Decision Date: 21 June 1881
• Citation: 9 N.W. 417,56 Iowa 498
• Parties: INCORPORATED TOWN OF NEW HAMPTON v. CONROY AND OTHERS.
• Court: Iowa Supreme Court

56 Iowa 498

9 N.W. 417

INCORPORATED TOWN OF NEW HAMPTON

v.CONROY AND OTHERS.

Supreme Court of Iowa.

Filed June 21, 1881.

Appeal from Chickasaw district court.

The plaintiff is incorporated under the general incorporation law. The town council passed an ordinance providing that no person should sell any vinous or malt liquors without having obtained a license from the authorities of the town. It was provided the applicant for such license should execute a bond in the penal sum of $1,000, conditioned he would comply with all the provisions of the ordinance, among which was that no gambling should be permitted on the premises covered by the license, nor should any intoxicating liquors, other than vinous or malt, be sold thereon. For each and every violation of the provisions of the ordinance there should be forfeited and paid to the plaintiff, by the person to whom the license was granted, the sum of $100 dollars. The defendants Conroy and Dorgan applied for, and there was issued to them, a license, in accordance with the provisions of the ordinance. They and the other defendants, as their sureties, executed a bond as provided therein, which was conditioned, in substance, that said Conroy and Dorgan would not suffer or permit any gambling, and would not sell any intoxicating liquors, except vinous and malt, on the premises described in the license. This action is brought on said bond, and the breaches alleged are that gambling was permitted and intoxicating liquors, other than vinous and malt, were sold on said premises. There was a demurrer to the petition, which was sustained, and plaintiff appeals.Powers & Kenyon, for appellant.

No appearance for appellees.

SEEVERS, J.

1. The sale of intoxicating liquors, other than vinous and malt, is prohibited by the laws of the state. Cities and towns are incorporated under the general incorporation law, have the power “to regulate, license, and tax or prohibit beer and wine saloons, * * * and to regulate or prohibit the sale of intoxicating liquors not prohibited by the state.” Chapter 24, Laws of Sixteenth General Assembly; Miller's Code, § 463. As we construe this statute the plaintiff was prohibited from passing any ordinance regulating or prohibiting the sale of intoxicating liquors, other than wine and beer. If the plaintiff, in attempting to carry out powers clearly conferred; penalties have been attached to acts over which the plaintiff did not have jurisdiction, the ordinance so providing is void and cannot be enforced. Any ordinance which prescribes needful rules and regulations in relation to the sale of wine and beer within their limits, may undoubtedly be enacted by cities and towns. The provision, whatever it may be, must relate to the sale of wine and beer. The ordinance in question, under the pretence of regulating the sale of wine and beer, provides penalties for the sale of other intoxicating liquors. How can it be said such penalties regulate or can have any effect on the sale of wine and beer. The power to prohibit is just as clearly granted as that to license or regulate. Now, suppose an ordinance should be passed prohibiting the sale of wine and beer, and it also provided that any one selling other intoxicating liquors should forfeit and pay $100 for each violation of the ordinance, could such an ordinance be enforced? We are of the opinion it could not. No distinction in principle can be drawn between such an ordinanceand the one in question. The case of Huber v. Baugh, 43 Iowa, 514, is distinguishable, because the ordinance in that case regulated and had reference to the sale of wine and beer only.

2. Authority is conferred on cities and towns to “authorize the destruction of all instruments and devices used for the purpose of gaming.” Code, § 456. The ordinances provide that if any person who obtains a license permits, on the premises described in the license, “any gambling or gaming for money,” he shall forfeit and pay the sum of $100 for each violation of the ordinance. The offence described in the ordinance is a crime, and punishable as such under the laws of the state. The only power conferred on the plaintiff is to authorize it to provide by ordinance that all instruments and devices used for the purpose of gaming should be destroyed. No power is conferred to punish any one, or prescribe penalties for permitting gambling or engaging therein, and yet this is what the ordinance does. A similar ordinance, under a statute much like the foregoing, was held to be void in the City of Mount Pleasant v. Breeze, 11 Iowa, 399. Nor is there any distinction in principle between the case at bar and the City of Chariton v. Barber, 6 N. W. REP. 528. These cases are distinguishable from Town of Bloomfield v. Trimble, ...